Feb 19, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

What Is the MSPB Discovery Process & Why Is It Important?

For federal employees, preparing your appeal to the Merit Systems Protection Board (MSPB) can feel complex and intimidating. Even though it’s your legal right to challenge unfair or unjust adverse employment actions, many employees still feel disadvantaged compared to their agencies. Fortunately, employees can access a powerful tool to help level the playing field: the MSPB discovery process. During discovery, federal workers can obtain crucial evidence that can make a significant difference in the outcome of their appeal. In this blog post, we’ll explain what federal employees should know about the discovery process in MSPB cases and how they can use it strategically to protect themselves and their careers. What Is the MSPB Discovery Process? Discovery is the legal process where both parties in a dispute exchange information before they meet in a formal hearing. It allows each side to gather and understand the evidence the other side is relying on. In MSPB appeals, discovery allows federal employees to collect documents, records, and testimony that can challenge the legitimacy of their agency’s decision. If you intend to claim that discrimination, retaliation, or procedural errors were behind your agency’s actions, discovery is vital to gathering the concrete evidence you might otherwise not have access to. What Does the MSPB Discovery Process Involve? Under MSPB discovery rules, federal employees must begin making information requests no later than 25 days after the acknowledgment order for the appeal is issued. The scope of federal discovery rules allows employees to request any information that they believe could help prove their case or detract from an agency’s claims. Here are some of the different ways that federal employees can seek information during MSPB discovery: For example, imagine a TSA officer is facing removal based on alleged misconduct. They use discovery to request emails between their supervisor and HR officials discussing the proposed termination. These emails reveal that personal bias motivated by the employee’s religious faith rather than performance issues influenced the decision. This evidence becomes key in proving that the action was unjustified and discriminatory. How to Use MSPB Discovery Effectively Many federal employees assume they already have all relevant information about their situation when they appeal to MSPB. However, this is far from the case. Although federal agencies must share some relevant information with employees when they deliver the notice of proposed action, they often withhold other documents that could be crucial for your case. Don’t assume you understand the whole picture based on your agency’s initial disclosure. Additionally, the discovery process isn’t just about building your case—it’s also about anticipating the agency’s arguments. Discovery allows you to be proactive and avoid potential claims against you. For example, if you expect the agency to claim that your termination was due to performance issues, you can use discovery to obtain all performance reviews, commendations, and evidence that supports your track record. Discovery is a complex legal process, and navigating it can be challenging for federal employees whose careers may be on the line. The best way to make the most of the discovery process is to seek qualified legal assistance. An experienced federal employment lawyer can help draft information requests, stay on top of deadlines, and prepare a strong legal strategy to increase your chances of a positive outcome. Protect Your Federal Career with Trusted Legal Guidance If you are facing an MSPB appeal, you need a legal team that understands the complexities of the discovery process and how to use it to your advantage. The Federal Employment Law Firm of Aaron D. Wersing PLLC has years of experience successfully supporting federal employees through their MSPB appeals. Our team can uncover key evidence, challenge agency defenses, and build a compelling case on your behalf. To learn more about how we can help you, contact our office today to schedule a consultation.

Feb 19, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

MSPB and Affirmative Defenses: What You Should Know

Federal workers facing potential suspension, demotion, or removal often feel like the deck is stacked against them. Fortunately, federal law offers civil servants some key tools for challenging unfair agency actions, including the right to assert an affirmative defense before the Merit Systems Protection Board (MSPB). An affirmative defense can overturn or mitigate an agency’s disciplinary decision if successfully argued. Read on to learn more about how affirmative defenses work, MSPB’s evolving approach to handling them, and how federal employees can use them to protect their job security. What Is an Affirmative Defense? An affirmative defense is a legal argument that federal employees can use to negate a federal agency’s adverse employment action. In an MSPB affirmative defense, an employee doesn’t just argue that an agency misinterpreted facts or lacked evidence for their decision. Instead, an affirmative defense tries to show that an agency’s action violated an employee’s rights or federal law. Common affirmative defenses federal employees use when appealing to the MPSB include: Showing the MSPB that an agency engaged in misconduct in one of these acts is one of the most effective ways for federal employees to challenge and avoid career-damaging adverse actions. How Do Affirmative Defenses Work? Raising an affirmative defense is not just about making allegations—it requires evidence and legal arguments. The federal employee has the burden of proof to show that their agency’s action was improper by “a preponderance of the evidence.” Put simply, they need enough evidence to show the agency violated relevant laws and regulations. This typically involves: For example, imagine a federal employee faces removal after reporting agency fraud to a law enforcement authority. This employee might build an affirmative defense based on whistleblower retaliation with emails establishing that the adverse action happened shortly after their report and testimony from coworkers confirming the agency’s hostile response. If the employee presents enough evidence to demonstrate the agency was motivated by retaliation, they could have their removal reversed. How Has the MSPB’s Approach to Affirmative Defenses Changed? Recent decisions have altered how the MSPB evaluates affirmative defenses. In a 2022 ruling, the MPSB revised certain procedural standards that had provided some advantages to federal employees pursuing these defenses. For example, in the past, if an administrative judge made an error in ruling on a case involving an affirmative defense, the employee could automatically have their case reconsidered, even if their claim lacked substantive evidence or effort. Under the MSPB’s new guidelines, employees must make a more intentional effort to pursue affirmative defense cases. Otherwise, the MSPB has much more flexibility to dismiss a defense that doesn’t meet procedural requirements or lacks legal backing. Ultimately, federal employees must be careful and prepared when using affirmative defenses. Having the support of experienced legal counsel is essential for federal employees to ensure their case is presented correctly and given a fair chance. Dedicated Defenders of Federal Employee Rights Successfully asserting an affirmative defense before the MSPB requires deep knowledge of federal employment laws, procedural rules, and legal strategy. Fortunately, federal employees don’t have to take on the burden of building an affirmative defense alone. The Federal Employment Law Firm of Aaron D. Wersing has provided dedicated and personalized service to federal employees and their families for years. Our team has extensive experience with MSPB cases and employee affirmative defenses, from harmful procedural errors to whistleblower retaliation claims. If you are facing an adverse action, contact our office today to schedule a consultation and learn more about how we can help. Resources: 5 U.S.C. § 7701(c)(2)(A), link.

Jan 9, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

Who Can Appeal Adverse Actions to the MSPB?

When you’re a federal employee, learning you’re the subject of a proposed adverse action can be frustrating and confusing—especially if you think your agency is acting unjustly. However, unlike many private-sector workers, federal employees don’t necessarily have to accept unfair discipline at the hands of an employer. Federal law prohibits government employers from firing or disciplining most civil servants without a good reason, such as poor performance or misconduct. When an agency doesn’t follow these rules, eligible federal employees can appeal to the Merit Systems Protection Board (MSPB) to challenge their adverse action and potentially have it reversed. In this blog post, we’ll explain who can appeal adverse actions to the MSPB, which civil servants are exempt from appeal rights, and what disciplinary actions can be appealed. Who Can Appeal Adverse Actions to the MSPB? Not all government workers have the right to challenge an adverse action before the MSPB. The eligibility requirements for MSPB appeals rights are in Title 5 of the U.S. Code, the primary set of laws covering federal employees. Whether you have the right to appeal depends on various factors, including your employment category, how long you’ve been working, and the type of adverse personnel action you’re facing. Under Chapter 75 of Title 5, you are typically eligible to appeal adverse actions to the MPSB if you are: Certain federal employees are also explicitly excluded from the right to appeal to the MSPB, including: If you’re unsure whether you have MSPB appeal rights, consult with your agency’s Human Resources department or a federal employment lawyer. Can You Appeal an Adverse Action If You Don’t Work for a Federal Agency? Put simply, yes, you may still have the right to appeal an adverse action, even if a federal agency doesn’t employ you. This question arose in a 2022 case involving an Office of Administration (OA) employee, which supports the Executive Office of the President. The employee had successfully appealed their case to an MSPB administrative judge, who reduced the OA’s proposed removal to a 60-day suspension. In response, the OA argued that the employee didn’t have a right to appeal to the MSPB since the OA is not technically an “agency” as recognized by federal law. However, the MSPB clarified in their final opinion that an employee’s right to appeal an adverse action is not strictly limited to employees of federal agencies. Instead, the MPSB clarified that appeals rights hinged on whether a civil servant met the eligibility requirements established by Title 5. Ultimately, government employees who meet all these criteria and are not expressly excluded from appeals rights may still challenge an adverse personnel action before the MSPB. What Is an Adverse Action for MSPB? An adverse action is an unfavorable change to an employee’s job status or pay made by a federal employer. Adverse personnel actions include: Unlike in the private sector, federal employers must have concrete, documented reasons (i.e., “cause”) for enforcing an adverse personnel action. They also must follow specific procedures intended to ensure fairness in the disciplinary process, such as providing advance notice to an affected employee and allowing them an opportunity to respond. Employees may exercise their right to an MSPB appeal when employers don’t follow these rules. Protect Your Rights with the Help of a Skilled Advocate Understanding your rights is critical if you are a federal employee facing an adverse action. The MSPB appeal process can be complex, and having an experienced advocate by your side can make all the difference. The Federal Employment Law Firm of Aaron D. Wersing has spent years empowering federal workers to understand and exercise their unique rights as employees. Our team has helped hundreds of clients navigate employment disputes, fight unfair discipline, and even reverse proposed removals. We have extensive experience with MSPB appeals across virtually all aspects of the federal government, and we’re prepared to help ensure your voice is heard. Contact us today to schedule a consultation and learn how we can assist you.

Jan 7, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

Due Process Issues in MSPB Cases

Due process is a cornerstone of fairness in federal employment disputes. Federal agencies must follow specific legal procedures before firing or negatively altering a federal worker’s employment status to protect qualified civil servants from arbitrary or politicized employment actions. When agencies fail to follow these procedures, federal employees can make a case to the Merit Systems Protection Board (MSPB) and potentially have their adverse action reversed. This blog post will give an overview of federal employees’ rights to due process in an adverse employment action. We’ll cover the basic legal protections government workers have and common due process issues in MSPB cases to be aware of. Understanding Federal Employee Due Process Rights The right to due process originally comes from the Fifth Amendment of the U.S. Constitution, which states that the federal government can’t legally deprive anyone of life, liberty, or property without following a specific procedure. For federal government employees, employment is, in essence, a property right. This means that civil servants can’t be disciplined or removed from their roles without going through a specific process. The Civil Service Reform Act of 1978, which aimed to foster a merit-based, nonpartisan federal workforce, established the steps of this process. Federal employee due process rights in employment actions generally consist of the following: Federal employees also have the right to appeal their case to a neutral entity if they feel the adverse action was enacted unfairly. The Merit Systems Protection Board (MSPB) is the neutral body that oversees these cases and reviews whether federal agencies have adhered to due process requirements. The MSPB is vital in holding agencies accountable and safeguarding employees’ rights. Federal Employee Due Process Violation Examples Although due process is one of federal employees’ most fundamental rights, agencies may not always respect these rights. Let’s look at some examples of due process violations federal employees may face. Insufficient Notice of Charges Federal employees must receive advance written notice of the reasons for an agency’s proposed adverse action. Agencies must be specific and detailed about an employee’s alleged disciplinary or performance issues. For example, simply stating that an employee showed “poor performance” without naming particular incidents could be a due process violation. Denial of Opportunity to Respond Employees must receive the chance to respond to the allegations against them. This includes presenting evidence, providing explanations, and defending against their employer’s claims, either in writing or during an oral hearing. If an agency makes a proposed action final before an employee can reasonably respond, it may violate due process laws. Refusal to Share Critical Information Federal employees have the right to review all information an agency relies upon when deciding on disciplinary action. You can request this information if an agency doesn’t provide it when they give you notice. Agencies that refuse an employee’s request for information can have their decisions overturned by the MSPB. MSPB Harmful Procedural Error An employee faces a harmful procedural error when an agency fails to follow its own internal policies or legal requirements, which negatively impacts the outcome of the case. For the MSPB, a harmful procedural error or a due process violation could be grounds to reverse an agency’s adverse action. That’s why federal employees must understand their rights in these processes. Dedicated Advocates for Civil Servants It’s normal for federal employees to feel overwhelmed and paralyzed when their job is threatened. However, you are far from powerless in this situation. If you suspect your employer has violated your rights in a proposed action, the Federal Employment Law Firm of Aaron D. Wersing can provide the guidance and support you need. Attorney Aaron D. Wersing has extensive experience helping federal employees understand and exercise their rights in employment disputes. Our team understands the complexities of due process issues in MSPB cases, and we’re prepared to fight to ensure on behalf of you and your career. Contact our office today to schedule a consultation and learn more about how our advocates can help you. Resources: 5 U.S.C. § 7503, link.

Dec 26, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | MSPB

Can Federal Employees Be Disciplined for Lack of Candor?

We all know that lying to your supervisor or another federal employee can lead to big trouble. But what happens when a federal employee does not lie but fails to share everything they know? Can you be punished for withholding information? The short answer is yes. The charge for this kind of situation is called “lack of candor,” and lack of candor can lead to discipline. Agencies tend to use “lack of candor” when they can’t charge an employee with the more serious charge of “falsification.” But where falsification involves a federal employee who actually lies, lack of candor federal employee centers around the employee’s failure to be forthright. While less serious than falsification, lack of candor discipline can lead to a serious black mark on your federal record, and for some employees such as law enforcement officers, can end one’s career. For that reason, you should consult a dedicated federal employment attorney if you are facing a lack of candor charge. Lack of Candor Meaning What does lack of candor mean? While it is one of the most common misconduct charges seen in the federal workplace, it is hard to describe lack of candor. A legal definition of the concept is hard to find. Lack of candor describes an employee’s failure to be truthful or forthcoming in communications with their employer. Federal agencies consider honesty and transparency essential, making this charge a serious matter. Instead, many legal practitioners treat lack of candor as a broader concept—one which involves a failure to disclose something which should be disclosed to make a statement accurate and complete. Because of its somewhat ambiguous meaning, some federal supervisors use lack of candor as a catch-all charge to throw at an unpopular employee. This behavior is especially common when a supervisor is harassing or retaliating against an employee that they do not like. What are the Elements of a Lack of Candor Charge? The Merit Systems Protection Board (MSPB) has said there are two main elements of a lack of candor federal employee charge. First, the employee must give incorrect information or incomplete information. Second, the employee must give incorrect or incomplete information knowingly. Accidentally giving an investigator information that later turns out to be incomplete or incorrect cannot lead to a valid lack of candor charge. What Is the Difference Between Lack of Candor and Falsification? As we stated above, lack of candor only involves concealing information or giving incomplete information. Falsification requires an affirmative misrepresentation, a lie. To prove a falsification charge, the agency needs to establish that you had a specific intent to deceive. But proving someone’s intent is quite difficult to do. Consequently, agencies face an uphill battle when charging employees with falsification. Unlike falsification, lack of candor does not have an intent element. All the agency has to prove is that you knew that the information you were giving was incorrect or incomplete. This is significantly easier than proving you had a specific intent to deceive. This is another reason that agencies tend to charge employees with a lack of candor rather than falsification. It’s simply easier for them to make the charge stick. How Do You Prove a Lack of Candor Charge? The standard of proof for a charge is the amount of evidence the government needs to produce to win its case. For most charges, including lack of candor, the standard of proof is preponderance of the evidence. This means the agency only has to convince a fact-finder that the alleged conduct was more likely than not to have occurred. That is a relatively low standard, making it easy for the agency to prove its case against employees without legal assistance. That issue aside, lack of candor cases almost always involve a credibility determination. In other words, it requires the judge to decide whether the employee accused of wrongdoing seems trustworthy when they give their version of the facts. The presence or absence of other evidence is also critical. Are there multiple documents with your signature that make contradictory statements? Did any witnesses hear you make two different claims at various times? These types of evidence can single-handedly change the outcome in a lack of candor case. A skilled attorney will interview witnesses and collect evidence that supports your testimony. That is one of many reasons that having an attorney at your side is absolutely essential if you have been charged with lack of candor. Are There Any Defenses to a Lack of Candor Charge? Yes. One defense is that you did not know that the information you related was incomplete or incorrect. Maybe you did not recall the information or did not fully understand the question. Alternatively, you can assert that your agency acted against you because of illegal discrimination. Illegal discrimination includes any different treatment based on certain protected characteristics. A few examples of protected characteristics include race, sexual identity, gender, sexual orientation, disability, and military service. When you meet with a federal employment attorney, they will most likely ask you if you can think of similar employees who have received different treatment. If you can think of those kinds of employees, it may be a sign of illegal discrimination in your case. What Are My Rights If I Have Been Charged with Lack of Candor? As a federal employee, you have several basic due process rights. Whether your employer charges you with lack of candor or another charge, they must generally do three things. First, they must give you at least a 30-day advance notice regarding any proposed adverse action. Second, they must give you a specific and detailed description of your alleged misconduct. Third, they must give you the right to review the materials relied on to propose the action and a meaningful opportunity to defend yourself. If you do not receive these due process rights, a judge may overturn the agency’s action even if they meet their burden of proof. If the discipline is sustained, you may be able to appeal to the...

Dec 18, 2024 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

How Many Federal Employees Win Their Cases with the MSPB?

Thousands of federal employees exercise their unique right as government workers to appeal disciplinary and adverse actions with the Merit System Protection Board (MSPB) every year. The ability to challenge an agency’s potentially unfair or unjust employment decisions is one of the most vital legal protections federal workers enjoy. However, when you’re a federal employee considering your options after a proposed demotion, suspension, or removal, it’s natural to ask a critical question: How many federal employees win their cases with the MSPB? This blog post will explain what federal employees should know about the success rate of the MSPB appeal. We’ll break down the data on MSPB cases won on appeal and clarify some important facts behind these numbers. How MSPB Appeals Work The MSPB is a quasi-judicial body that oversees job-related disputes between federal employees and agencies. When eligible federal employees face a proposed disciplinary action from their employer, they can bring it to the MSPB for review. Some of the actions appealable to the MSPB include: The MSPB ensures that an agency has acted correctly and fairly under federal employment laws and policies. It also protects civil servants from arbitrary or politically motivated discipline. Eligible employees typically have up to 30 days to file an appeal with the MSPB after an adverse action. In the process, you can offer arguments and submit evidence to an administrative judge (AJ) showing why your employer’s action was wrongful. You also have the right to hire a lawyer to represent and advise you throughout the appeal process. The AJ will review your claim and decide whether your agency’s action was appropriate. If their decision isn’t in your favor, you can file for a limited number of additional rounds of review. Rate of MSPB Cases Won by Federal Employees So, how many federal employees win their cases with the MSPB? According to MSPB data, only a few. In 2019, the agency released a report showing that federal employees won their appeals in only 3% of cases from the previous three years. The MSPB’s 2023 report suggests that this trend continues. Of the 4,135 total appeals the MSPB decided that year, only 98 saw a reversal of an agency’s original decision. That puts the MSPB appeal success rate for federal employees at 2.4% in 2023. Understanding the Data on MSPB Case Decisions The low success rate in MSPB appeals can seem discouraging. However, this statistic doesn’t tell the whole story. For one, the MSPB’s appeal success rates don’t consider cases that end in settlement. A settlement is a legal way to resolve an issue without an official ruling or decision. In it, both sides agree to terms that are generally favorable to each of them. For example, an employee appealing a proposed removal could agree to a settlement that allows them to keep their job on the condition that they meet specific performance standards over the next six months. Although settlement details vary from case to case, they often involve at least a partially favorable outcome for an employee. Additionally, many of the failed MSPB appeals are cases dismissed because of often avoidable errors. Dismissal of cases can occur because of: Of the 4,135 appeals filed in 2023, almost 3,000 were dismissed. Of the remaining cases eligible for consideration on merit, 732 ended in settlements. With this in mind, we can get a different perspective on employee success rates. Of the 1,320 cases the MSPB did not dismiss, 63.6% ended in either a settlement or an outright win for employees in 2023. Understanding the details behind the data on MSPB case decisions is essential for federal employees considering an appeal. Make no mistake: pursuing a successful MSPB appeal can be challenging. However, with thorough preparation and experienced legal support, a positive outcome isn’t as far off as initial statistics suggest. A Trusted Advocate for Federal Employees Navigating the technical and legal complexities of the MSPB appeal process can be daunting, especially for federal employees already stressed about their job security. Fortunately, you don’t have to fight this battle alone. Seeking support from a legal professional trained in federal employment law is one of the most effective ways to increase the chances of a positive outcome in an MSPB appeal. Attorney Aaron D. Wersing has spent years advocating for federal employees seeking relief from unfair or excessive actions by their agency. With hands-on experience in virtually all aspects of federal government employment, Aaron Wersing has the legal knowledge and strategic insights to help advise you at each step of your MSPB appeal. Contact the Federal Employment Law Firm of Aaron D. Wersing PLLC to learn more about your options and how we can help.

Aug 6, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | MSPB

What Is a Reduction in Force for Federal Government Employees?

Downsizing, layoffs, restructuring, rightsizing, labor force adjustments, reduction in force—no matter what you call it, most employees know it means bad news. Many people use these terms interchangeably to refer to involuntary job cuts across an organization. However, for federal employees, a reduction in force (RIF) involves specific procedures that don’t apply to workers in the private sector. In this blog post, we’ll answer common questions about how downsizing works for federal employees, including: We’ll discuss what sets a federal RIF apart from layoffs or downsizing in the private sector and explain the rights and regulations involved. Individuals laid off or affected by RIF qualify for unemployment benefits. If your contract includes severance pay, you are entitled to receive it. If you suspect wrongful termination, contact our office for a free consultation. What Is an RIF in Business? In the private sector, a reduction in force happens when an organization eliminates employment positions it no longer needs. A business that conducts an RIF permanently reduces its workforce, usually for financial reasons. An RIF often follows massive budget cuts, economic instability, or other major changes in business strategy. Sometimes, private employers offer severance packages to help ease the shock of termination, but this is not always the case. RIF vs. Layoff Many employees today use the term “layoffs” instead of RIF to describe a permanent reduction in the workforce. Although the two words refer to similar situations, they actually refer to different things. The primary thing that separates these two things is the potential for rehiring. Technically, a layoff is a temporary reduction in staff motivated by present budgetary or operational challenges. For example, a business that hires aggressively before the holiday season may discover that there’s not enough work to justify its current labor force in the off-season. As a result, they might choose to initiate layoffs with the intention of rehiring some employees in the future when demand rebounds. With an RIF, there’s no potential for rehiring by the same company. Once the position is gone, it’s gone. What Is an RIF for Federal Employees? At the most basic level, a federal RIF is very similar to a private sector RIF. In a federal RIF action, an agency decreases its total employment positions and permanently eliminates one or more employees. Situations when federal agencies could initiate an RIF include: Unlike in the private sector, specific procedures govern how federal agencies conduct an RIF. The Code of Federal Regulations gives agencies the authority to make certain key decisions in the process, including: However, agency leaders don’t have total control over when it comes to which employees get terminated. How Do Agencies Decide Who to Eliminate? Federal law requires agencies to use a designated RIF procedure to evaluate employees and determine who is eligible for retention, reassignment, or removal. First, the agency will group employees under consideration into a competitive area category to limit the RIF process geographically and organizationally. Then, the agency separates workers into sub-groups. These “competitive levels” are composed of employees with interchangeable job duties, qualifications, and hours (e.g., full-time, part-time, etc.). This ensures that employees are evaluated against others with similar skills and responsibilities. Now, the agency begins the process of evaluating each employee according to four retention regulations: Based on these factors, the agency will rank employees within their competitive level. Federal employees who rank higher in their regulation register are likely to stay in their role, while those closer to the bottom are at a greater risk of removal. What Rights Do Federal Employees Have in an RIF? The complex regulations around a federal RIF can seem intimidating to employees. However, employees do have important rights throughout the process. These include: When your agency fails to respect these rights—or the rules involved in the retention evaluation process—you could have grounds for legal action. If you’re concerned about oversights or unfairness in your RIF process, contact a federal employment attorney immediately. Passionate Advocates for Government Workers RIF procedures are complex for everyone involved. Unfortunately, agencies don’t always apply the proper care and consideration required when evaluating employees for removal. When your job is on the line, you deserve the support and oversight of a professional. The Federal Employment Law Firm of Aaron D Wersing PLLC has spent years helping government workers understand and assert their rights in RIF actions and other employment disputes. Our attorneys have extensive experience with the unique complexities of federal employment law, from MSPB appeals to OPM disability applications. We’ve helped hundreds of federal employees protect their rights and regain their jobs. Contact our office today to learn more about how we can help you.

Dec 19, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

How to Prove Wrongful Demotion As A Federal Employee

If you have suffered an unfair demotion at work, then a wrongful demotion lawsuit will be your best bet for clearing your name and getting your career back on track. But before you begin your lawsuit, it’s vital to know how to prove your claims. As Sun Tzu once wrote, “Victorious warriors win first and then go to war.” There are two primary ways to prove wrongful demotion as a federal employee. The first is by showing that the government did not have just cause to remove you. The second way is by proving that your employer demoted you for illegal reasons, like discrimination or retaliation. Read on to learn more about these pathways and their respective legal requirements. If you have more detailed questions after reading this article, contact one of our outstanding federal employment attorneys. How to Handle an Unfair Demotion Handling an unfair demotion is difficult under any circumstances. However, your strategy depends on how far along you are in the disciplinary process. As a brief reminder, there are three main stages of the disciplinary process: 1. Responding Before Your Employer Officially Proposes a Demotion Many employees have no idea that their employer is about to propose their demotion. However, there are other situations where you know that some kind of action is coming. If you are currently in this situation, make sure you document all interactions with your employer. Save copies of any relevant emails and journal any notable conversations. Continue doing this throughout every part of the disciplinary process. Furthermore, consider scheduling a meeting with your supervisor or human resources team to discuss the alleged issue and potential alternatives. Hiring a legal representative for this kind of meeting can be a great way to show your employer that you want to resolve the situation and are willing to stand up for your rights. With timely action, many disciplinary actions can be delayed or even canceled. 2. Responding at the Proposal Stage By now, your employer is officially attempting to remove you. Fortunately, the law provides you with several protections. Due process requires that your employer first give you 30 days advance notice of its intent to demote you. They must do this in writing via a proposal letter. A proposal must include the following information to meet due process requirements: Make full use of all of these rights. Check whether the proposal letter meets all due process requirements. After that, carefully review the evidence. Does the proposal include objective evidence or just second-hand eyewitness accounts? Does anything suggest that you are getting treated differently than your colleagues? Next, hire a legal advisor to help you craft a thorough oral and written reply. This reply may prove vital in convincing the deciding official not to demote you. 3. Responding After the Final Decision Letter After a minimum of 30 days, your employer will issue a final decision letter. In this letter, the deciding official can either uphold the penalty, mitigate it, or cancel the action entirely. If you have received a decision letter upholding the unfair demotion, then you have the right to appeal the action to the Merit Systems Protection Board (MSPB). Appeal your unfair demotion with the board within 30 days of the decision letter date. After that, hire an attorney to discuss how you will argue your case. Legal Standards at an MSPB Hearing In an MSPB hearing, the burden is on your employer to justify their actions. If the demotion was related to misconduct, then your employer must prove by a preponderance of the evidence that you committed the alleged conduct. They must also demonstrate that there is a nexus between your alleged misconduct and the efficiency of the federal service. If they cannot meet this burden, then the judge will overturn or mitigate your demotion. Even if the agency meets its burden, you have the opportunity to defend yourself by raising affirmative defenses. There are two main types of affirmative defenses: You can also argue that the agency’s decision was not in accordance with the law in some other way. If you can prove your affirmative defense by a preponderance of the evidence, then you will prevail even if the agency proves you committed the alleged misconduct. Can There Be Compensation for a Wrongful Demotion? Yes. If you succeed in your appeal, the MSPB can award you back pay, compensatory damages, and attorney’s fees. It can also reinstate you in your previous position. Contact Our Federal Employment Attorneys to Help You Handle Your Unfair Demotion Here at the Federal Employment Law Firm of Aaron D. Wersing, each one of our attorneys has a proven track record of effective litigation on behalf of federal employees. We’ve tackled all kinds of MSPB appeals, including ones for unfair and improper demotions. Thanks to our experience, we can work with you to identify an effective litigation strategy that maximizes your chance of a successful appeal. Along the way, we’ll provide you with sterling client service. Reach out to us today to schedule an initial appointment.

Sep 14, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

What If I Miss the Deadline for Filing an MSPB Appeal?

The Merit Systems Protection Board (MSPB) appeals process is vital for defending federal employees’ rights. But as with all other legal processes, the MSPB appeal timeline is strict. For various reasons, it’s not uncommon for workers to inadvertently miss the deadline to file an MSPB appeal. If you find yourself in this situation, don’t panic. Even if you miss a deadline, there are situations in which you can nevertheless submit your MSPB appeal successfully. We will explore some of these situations in this article. However, it’s essential you phone a federal employment attorney immediately if you miss your appeal deadline. Having legal representation may make all the difference between a triumphant appeal and a ruined career. Understanding the MSPB Appeal Deadline Process Federal employees may know that the MSPB allows them only 30 calendar days to file an appeal. However, what most people don’t know is when that 30-day window begins. Under federal regulations, the 30-day period begins either on the effective date of the action or on the date of receipt of the agency’s decision. However, if the two conditions happen on different days, then the 30-day period begins on the day the last event happens. Let’s use an example to illustrate this point. On June 1, Joe receives a decision letter notifying him that he will be removed from the federal government on June 5 for alleged insubordination. Because the effective date of Joe’s removal is June 5, he has until July 5 to submit his appeal. Conversely, if Joe was effectively removed on June 5 but did not receive the decision letter until June 8, he has until July 8 to file his appeal. You should also remember a key point about holidays and weekends. If the 30th day of the appeal window falls on a weekend or federal holiday, then the window extends until the next working day. So if Joe’s 30-day window was scheduled to end on Wednesday, December 25, he would actually have until the following day to file his appeal. Exceptions to the Thirty-Day Rule Even if you miss your filing deadline, there are three situations in which the MSPB will hear an untimely appeal. The first situation occurs when a statute or regulation allows the courts to waive the deadline. For instance, MSPB regulations state that the 30-day deadline will be automatically extended to 60 days if you and your agency agree in writing to resolve your dispute with an alternative dispute resolution process, such as mediation or negotiation. The second situation applies when the agency fails to inform you of your appeal rights. This situation happens quite often because of clerical errors or oversights in the agency decision letters. Without being notified of your appeal rights, you have little or no information about how to contest their decision. Consequently, the law will excuse your delayed filing if you can show your agency did not inform you of your appeal rights. The third and most rare exception occurs when you rely on an erroneous statement by your agency, which causes you to miss the MSPB appeal deadline. For instance, let’s imagine that a postal service worker named Jane is told by her agency that she has 45 days to appeal her removal to the MSPB appeal. She filed her appeal 38 days later, at which point she learned that the real deadline for filing an MSPB appeal was 30 days after her removal. Although Jane’s appeal is technically untimely, her delay was really the result of her agency’s misinformation. What Do I Do If I Miss a Filing Deadline? The first thing to do if you miss your deadline to file an MSPB appeal is to get legal help. A federal employment attorney can help you explore your options. In addition, they can help you successfully petition the MSPB to waive your deadline. Second, try to determine why you did not file the appeal. Was it because you misunderstood your appeal rights? Did your agency properly inform you of the relevant deadline? Or did someone give you misinformation that led you astray? Whatever the case may be, make sure you save any relevant documentary evidence. Did You Miss a Filing Deadline? We’ll Do Our Best to Preserve Your Rights Our attorneys at The Federal Employment Law Firm of Aaron D. Wersing PLLC are passionate about defending your rights. That means doing everything we can to give you the opportunity to appeal disciplinary action. Over the years, we have helped countless employees file successful appeals past the applicable filing deadlines. When you consult with us, we’ll help develop a strategy to try to save your case. Along the way, we will work to provide you with outstanding customer service. Contact us today so we can work together to set your MSPB appeal back on track.

Sep 8, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

What Does the MSPB Have Jurisdiction Over?

The Merit Systems Protection Board (MSPB) is an independent government agency that plays a federal role in protecting the rights of federal employees. Specifically, it evaluates claims of prohibited personnel practices while also adjudicating the appeals of federal employees. Although federal employees can submit complaints to other agencies like the Equal Employment Opportunity Commission (EEOC) and the Office of Special Counsel, the MSPB is the primary group responsible for protecting federal employees against improper or discriminatory discipline. Consequently, every federal employee needs to understand what the MSPB has jurisdiction over. If you’re currently appealing an adverse action or considering filing an MSPB appeal, you’ll want to read this article to grasp what is and is not within the MSPB’s jurisdiction. You’ll also want to reach out to an experienced MSPB attorney today to make sure your rights are protected. What Is Jurisdiction? Merriam-Webster defines jurisdiction as “the power, right, or authority to interpret and apply the law.” Jurisdiction is a powerful concept in the legal world. Before anything else, a court must have the undisputed ability to hear a claim. If the court does not have jurisdiction, then it is impossible for either party in a lawsuit to prevail. Consequently, jurisdiction is one of the biggest factors attorneys consider when they meet with a client. The law empowers different courts with different kinds of jurisdictions. For instance, state appeals courts have appellate jurisdiction—or the power to evaluate the decisions of a lower state court. Federal courts have federal jurisdiction, while state courts have state jurisdiction. Most courts need three kinds of jurisdiction to hear a case: For specialized judicial agencies like the MSPB, there are specific limits to the kinds of appeals it can hear. What Kinds of Appeals Are Not Within the MSPB’s Jurisdiction? By federal law, the MSPB has appellate jurisdiction over most adverse actions taken by federal agencies against their employees. However, there are many kinds of appeals that fall outside the MSPB’s jurisdiction. Minor Disciplinary Actions The MSPB has jurisdiction to hear appeals of adverse actions. Adverse actions include things like removals, suspensions longer than 14 days, and losses of grade or pay. Short suspensions, reprimands, and letters of warning do not qualify as adverse actions. Therefore, a federal employee cannot appeal these actions to the MSPB. Appeals Brought by Probationary Employees All federal employees undergo a probationary period when they first join the federal service. Typically, this probationary period lasts between one and two years. During this time, federal employees have fewer rights, which means their employer can fire them more easily. Consequently, probationary employees cannot file an appeal to the MSPB even if they are the target of a removal action or a long suspension. That said, there are two exceptions to this rule. The MSPB will hear the appeals of probationary employees if those employees assert that their employer disciplined them either because of their partisan political beliefs or because of their marital status. Complaints Brought by State-Government or Private-Sector Employees The MSPB can only hear the appeals of federal employees. Every state in the US has its own unique system of evaluating the complaints and dismissals of state government employees. Accordingly, state employees must follow their state’s respective appeals system. Most private-sector employees have few or no appeal rights, though they can file discrimination and harassment complaints with the EEOC. Wondering If the MSPB Has No Jurisdiction Over Your Appeal? We Can Help. Now that you know the phrase “no jurisdiction” and its meaning, you may be curious about the consequences for your situation. Perhaps you are a probationary employee who was recently fired. Or maybe you believe your employer discriminated against you when it suspended you for seven days. While you may not be able to file an MSPB appeal, you may have other legal options. Our attorneys at the Federal Employment Law Office of Aaron D Wersing PLLC focus solely on representing federal employees. That means they understand all the nuances of federal employment law. When you set up a consultation with us, we can help you understand your legal options and give you the five-star representation you deserve. Call us today or visit our website to set up your initial consultation.